Ohio Supreme Court Brief on Teachers as Child Abuse Reporters

7/26/2019 Ohio Supreme Court Brief on Teachers as Child Abuse Reporters

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No. 13-1352

In the Supreme ourt of the United States

______________________________

STATE OF OHIO,

Petitioner,

v.

DARIUS CLARK,

Respondent.

______________________________

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

______________________________

REPLY BRIEF FOR PETITIONER

______________________________

MICHAEL DEWINE

Attorney General of Ohio

ERIC E. MURPHY

State Solicitor

SAMUEL PETERSON

Deputy Solicitor

30 East Broad Street

17th Floor

Columbus, Ohio 43215

614-466-8980

TIMOTHY J. MCGINTY

Cuyahoga County Prosecutor

KATHERINE E. MULLIN*

Assistant Prosecuting Attorney

*Counsel of Record

The Justice Center

1200 Ontario Street

Cleveland, Ohio 44113

216-443-7800

kemullin@prosecutor.

cuyahogacounty.us

Counsel for Petitioner State of Ohio
http://www.supremecourtpreview.org/


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TABLE OF CONTENTS

Page

TABLEOFCONTENTS .............................................. i

TABLEOFAUTHORITIES ...................................... iii

I. CLARK MISTAKENLY EXPANDS THE PRIMARY-

PURPOSE TEST TO COVERALLACCUSATIONS......... 1

A. Clarks Argument That Accusations Are

Testimonial Conflicts With Crawford AndIts Progeny ....................................................... 1

1. Clarks test conflicts with the

Confrontation Clauses text........................ 2

2. Clarks test conflicts with the

Confrontation Clauses purpose................. 6

3.

Clarks test conflicts with theConfrontation Clauses history................... 9

B. Clarks Child-Hearsay Analysis Flips

History On Its Head And Advocates For A

Rule This Court Has Already Rejected ......... 11

II. CLARK IMPROPERLY TREATS TEACHERS AS

POLICE MERELY BECAUSE OF A REPORTING

DUTY..................................................................... 15

III.CLARK HAS NOT SHOWN THAT L.P.S

STATEMENTS WERE TESTIMONIAL UNDER THE

PRIMARY-PURPOSE TEST....................................... 18

IV.THE PROPER BALANCE IN CHILD-ABUSE CASES

SHOULD BE STRUCK THROUGH DEMOCRATIC

MEANS, NOT THROUGH AN ATEXTUAL,

AHISTORICAL READING OF THECONFRONTATION CLAUSE..................................... 21

CONCLUSION .......................................................... 24


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ii

APPENDIX

Ohio Rev. Code 2151.421(H) ............................ 1a


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iii

TABLE OF AUTHORITIES

Cases Page(s)

Bourjaily v. United States,

483 U.S. 171 (1987) ...............................................8

Bullcoming v. New Mexico,

131 S. Ct. 2705 (2011) ...............................5,11,22

California v. Green,

399 U.S. 149 (1970) ...............................................7Commonwealth v. Hutchinson,

10 Mass. 225 (1813) .............................................12

Coy v. Iowa,

487 U.S. 1012 (1988) ...........................................22

Crawford v. Washington,

541 U.S. 36 (2004) ........................................passim

Davis v. Washington,

547 U.S. 813 (2006) ......................................passim

Douglas v. Alabama,

380 U.S. 415 (1965) ...................................2,3,4,5

Dutton v. Evans,

400 U.S. 74 (1970) .................................................5

Ferguson v. City of Charleston,

532 U.S. 67 (2001) .........................................15,16

Giles v. California,

554 U.S. 353 (2008) ...............................................5

Hiibel v. Sixth Judicial Dist. Court of Nev.,

Humboldt Cnty.,

542 U.S. 177 (2004) .............................................19

Idaho v. Wright,

497 U.S. 805 (1990) .................................14,15,23


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iv

King v. Brasier,

168 Eng. Rep. 202 (1779) ..............................12,13King v. Powell,

168 Eng. Rep. 157 (1775) ....................................13

Lee v. Illinois,

476 U.S. 530 (1986) ...............................................3

Maryland v. Craig,

497 U.S. 836 (1990) .............................................22

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) .................................3,5,6,11

Michigan v. Bryant,

131 S. Ct. 1143 (2011) ..................................passim

OToole v. Denihan,

889 N.E.2d 505 (Ohio 2008) ................................16

Ohio v. Roberts,448 U.S. 56 (1980) ...................................11,14,15

Rex v. Travers,

93 Eng. Rep. 793 (1726) ................................12,13

Solice v. State,

193 P. 19 (Ariz. 1920) ............................................9

State v. Frazier,574 N.E.2d 483 (Ohio 1991) ................................21

State v. Maxwell,

9 N.E.3d 930 (Ohio 2014) ....................................21

State v. Whittier,

21 Me. 341 (1842) ................................................12

Travellers Ins. Co. of Chicago v. Mosley,

75 U.S. 397 (1869) ...............................................10


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v

United States v. Boyce,

742 F.3d 792 (7th Cir. 2014) ...............................11United States v. DeLeon,

678 F.3d 317 (4th Cir. 2012), revd on

other grounds by133 S. Ct. 2850 (2013) .............22

Van Pelt v. Van Pelt,

1810 WL 773 (N.J. 1810) .....................................12

Wheeler v. United States,

159 U.S. 523 (1895) .............................................12

White v. Illinois,

502 U.S. 346 (1992) .....................................4,5,22

Williams v. Illinois,

132 S. Ct. 2221 (2012) ...................................2,6,7

Yates v. Mansfield Bd. of Educ.,

808 N.E.2d 861 (Ohio 2004) ................................16Statutes, Rules, and Constitutional Provisions

Fed. R. Evid. 603 .......................................................22

Ohio R. Evid. 803(6) ..................................................17

Ohio R. Evid. 807 ......................................................23

Ohio R. Evid. 807(A)(1) .............................................21

Ohio Rev. Code 2151.421(F)(1) ..............................16

Ohio Rev. Code 2151.421(H) ..................................17

Ohio Rev. Code 2151.421(H)(1) .............................17

Other Authorities

Daniel J. Capra, Case Law Divergence From

the Federal Rules of Evidence, 197F.R.D. 531 (2000) .................................................22


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vi

1 Edward H. East,A Treatise of the Pleas of

the Crown(Philadelphia 1806) ...........................13Francis Buller,An Introduction to the Law

Relative to Trials at Nisi Prius(4th ed.

London 1785) .......................................................21

1 James F. Stephen, History of the Criminal

Law of England (1883) ..........................................8

John H. Langbein, The Origins of Adversary

Criminal Trial(2003) ..........................................13

6 John H. Wigmore, Evidence 1756

(J. Chadbourn rev. 1974) .....................................10

John Henry Wigmore,A Supplement to A

Treatise on the System of Evidence in

Trials at Common Law 1761 (1908) ................14

3 John Henry Wigmore,A Treatise on theSystem of Evidence in Trials at Common

Law 1760 (1904) .........................................13,14

1 Kenneth S. Broun, McCormick on

Evidence 61 (6th ed. 2006) ................................14

Matthew Hale, The History and Analysis of

the Common Law of England(1713) ....................7

1 Matthew Hale, The History of the Pleas of

the Crown(E. Rider et al., 1800) .............12,13,21

ODJFS, Child Abuse and Neglect: A Reference

for Educators (2013), available at

http://www.odjfs.state.oh.us/forms/file.asp?id=

398&type=application/pdf ...................................16


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vii

Thomas D. Lyon & Karen J. Saywitz, Young

Maltreated Childrens Competence toTake the Oath, 3 Applied Dev. Sci. 16

(1999) ...................................................................15

Thomas D. Lyon and Raymond LaMagna,

The History of Childrens Hearsay: From

Old Bailey to Post-Davis, 82 Ind. L.J.

1029 (2007) ....................................................12,13

Thomas D. Lyon, Child Witnesses and theOath: Empirical Evidence, 73 S. Cal. L.

Rev. 1017 (2000) ..................................................22

Victoria Talwar et al., Childrens

Conceptual Knowledge of Lying and Its

Relation to Their Actual Behaviors:

Implications for Court Competence

Examinations, 26 Law & Hum. Behav.395 (2002) ............................................................15

W. Williamson, The Trials at Large of the

Felons, in the Castle of York(York 1775) .....12,13

3 William Blackstone, Commentaries on the

Laws of England(1768) ........................................7

9 William S. Holdsworth, A History of

English Law (1926)................................................7


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Ohios opening brief made three points. First, a

childs statements that are objectively meant solelyfor private parties without police involvement are

non-testimonial under Crawford v. Washington, 541

U.S. 36 (2004). Second, Ohios child-abuse reporting

statute does not turn reporters into police agents

and trigger the primary-purpose test governing po-

lice interrogations in the field. Third, even if the

primary-purpose test applies, L.P.s statements to his

teachers were non-testimonial.

Clarks response on each point lacks merit. He

argues for a contrary rule with no grounding in

Crawford or its progeny. And he justifies his rule

primarily with reliability and competency concerns

more appropriately directed to state legislatures

when drafting evidentiary rules than federal courts

when interpreting the Confrontation Clause.I.

CLARK MISTAKENLY EXPANDS THE PRIMARY-

PURPOSE TEST TO COVERALLACCUSATIONS

A. Clarks Argument That Accusations Are

Testimonial Conflicts With CrawfordAnd

Its Progeny

As Ohio noted, Petr. Br. 14-30, the Confrontation

Clauses text, purpose, and history show that, when

objectivelyassessed, statements meant solelyfor pri-

vate parties without anypolice involvement are non-

testimonial. This rule follows from the Confrontation

Clauses witness textwhich covers statements

meant for a criminal trial, not a private audience.

The rule follows from the clausespurposeto bar the

use of ex parte examinations by government officers.And it follows from the Nations history of regulating

private conversations under evidentiary, not consti-


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tutional, rules. Here, L.P.s statements to his teach-

ers fall within this narrow rule because they weremeant for daycare teachers, and the government had

no involvement in the conversation.

In response, Clark asserts that Ohio mistakenly

relies on a statements private audience, suggesting

instead that the focus should be on the statements

accusatorial content. Specifically, Clark argues that

the Confrontation Clause bars out-of-court state-

ments that . . . would function if introduced at trial

as the equivalent in the jurys mind of testimony.

Resp. Br. 25-26 (quoting Douglas v. Alabama, 380

U.S. 415, 419 (1965)). Under this rule, he says,

statements accusing a targeted individual of engag-

ing in criminal conduct are generally testimonial.

Id. at 27 (quoting Williams v. Illinois, 132 S. Ct.

2221, 2242 (2012) (plurality op.)). But the same text,purpose, and history that prove Ohios approach

equally disprove Clarks competing view.

1. Clarks test conflicts with the Con-

frontation Clauses text

The clauses witness text shows that Clark is

wrong both to focus on the jurys perspective and to

place dispositive weight on the statements content.

a. Clarks jury-focused test conflicts with the

Courts declarant-focused test. Whether a declarant

is a witness turns on the declarants perspective

because the declarants statements must pass the

Sixth Amendment test. Michigan v. Bryant, 131

S. Ct. 1143, 1162 (2011). While a questioners per-

spective helps assess the nature of the declarantspurpose, id. at 1160 n.11, 1162, no post-Crawford

case adds the jurysperspective to the mix. Indeed,


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even under the primary-purpose testwhich consid-

ers the totalityof the circumstances[t]he existenceof an ongoing emergency must be objectively as-

sessed from the perspective of the parties to the in-

terrogationat the time, not with the benefit of hind-

sight. Id.at 1157 n.8.

Douglas, the pre-Crawford case on which Clark

relies, does not help him. Resp. Br. 25-26. There,

the defendant and the declarant, Loyd, had been

charged with assault. 380 U.S. at 416. At the de-

fendants trial, the prosecutor handed Loyd his con-

fession and read from the document, pausing after

every few sentences to ask Loyd, in the presence of

the jury, Did you make that statement? Id. Loyd

invoked his right to remain silent each time. Id. The

prosecutor did this [u]nder the guise of cross-

examination to refresh Loyds recollection, never in-troducing the confession. Id. at 416-17. That the

prosecutors questionswere at issue led the Court to

say that his reading may wellhave been the equiva-

lent in the jurys mind of testimony that Loyd in fact

made the statement. Id.at 419. This language re-

sponded to the distinction between a prosecutors

questions and a witnesss answers. Lee v. Illinois,

476 U.S. 530, 542 (1986) (noting the confession wastechnically not evidence). It did not distinguish

testimonial from non-testimonial hearsay.

b. Clark incorrectly asserts that accusations are

generally testimonial. Resp. Br. 27. First, Clarks

accusation test conflicts with the witness text. A

witness speaks solemnly and for the purpose of es-

tablishing or proving some fact at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009). An

accusation does not satisfy this definition simply be-


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cause it inculpates the defendant. Like any state-

ment, it must be made to creat[e] an out-of-courtsubstitute for trial testimony. Bryant, 131 S. Ct. at

1155. And just as the purpose of custodial police in-

terrogation, objectively assessed, is evidentiary, the

purpose of an accusation meant solely for private

parties without police direction, objectively assessed,

is non-evidentiary. An accuser who makes a formal

statement to government officers acts as a witness;

an accuser who makes a casual remark to an ac-quaintance does not. Crawford, 541 U.S. at 51.

Clark responds with language from Davis v.

Washington, 547 U.S. 813 (2006), that statements

are testimonial if the primary purpose of the inter-

rogation is to establish or prove past events poten-

tially relevant to later criminal prosecution. Id. at

822; Resp. Br. 26. But Davis was discussing state-ments to police who were perform[ing] investigative

and testimonial functions. Id. at 830 n.5. It dis-

claimed any notion that its test governed all con-

ceivable statements, leaving open the proper test for

private conversations. Id.at 822-23 & n.2.

Second, Clarks accusation test conflicts with cas-

es distinguishing between statements to governmentofficers and statements to private actors. Take

Crawfords treatment of the childs statements in

White v. Illinois, 502 U.S. 346 (1992). While Craw-

ford suggested the childs statements to police were

testimonial, Resp. Br. 32, it expressed no concern

about similar statements to the mother. 541 U.S. at

58 n.8; White, 502 U.S. at 349-50. The statements

audience, not its content, made the difference.

This is confirmed by comparing cases Clark cites

(Douglasand Hammon v. Indiana) with cases he ig-


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nores (Giles v. California, 554 U.S. 353 (2008), and

Dutton v. Evans, 400 U.S. 74 (1970)). Douglas andHammonfound statements testimonial because they

were topolice. Loyds confession after interrogation

represented exactly the type of formalized testimo-

nial evidence that lies at the core of the Confronta-

tion Clauses concern. White, 502 U.S. at 365

(Thomas, J., concurring in the judgment). Hammon

found statements testimonial because they were

made in response to police questioning about pastcrimes. Davis, 547 U.S. at 830.

Giles and Dutton, by contrast, show that private-

party accusations are non-testimonial. Gilesrejected

the dissents view that the Confrontation Clauses

forfeiture exception should be interpreted broadly to

help women in abusive relationships. 554 U.S. at

376. In the process, it noted that [s]tatements tofriends and neighbors about abuse are non-

testimonial. Id. The Dutton statement[i]f it

hadnt been for that dirty son-of-a-bitch Alex Evans,

we wouldnt be in this nowwas as accusatorial as

they come. 400 U.S. at 77 (plurality op.). Yet it was

clearly nontestimonial because directed to a prison-

er, not a cop. Davis, 547 U.S. at 825.

Third, Clarks accusation test conflicts with cases

finding a statements accusatorial nature irrelevant.

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717

(2011). When rejecting the argument that analysts

are not subject to confrontation because they are not

accusatory witnesses, the Court found no support

in the text of the Sixth Amendment for a distinction

between accusations and other statements. Melen-dez-Diaz, 557 U.S. at 313. If the Confrontation


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Clause does not exempt non-accusatorial testimony,

it should not encompass non-testimonialaccusations.Fourth, Clark incorrectly claims support for his

test in the Williams plurality and Melendez-Diazdis-

sent. Resp. Br. 26-27, 42-43. These opinions do view

the Confrontation Clause as limited to statements

having the primary purpose of accusing a targeted

individual of engaging in criminal conduct. Wil-

liams, 132 S. Ct. at 2242 (plurality op.). But Clark

mistakes a necessary condition for a sufficient one.

The opinions require statements to be both accusato-

rialand testimonial. Id.; Melendez-Diaz, 557 U.S. at

330 (Kennedy, J., dissenting).


frontation Clauses purpose

Clark misreads the Confrontation Clauses pur-pose when he asserts that it was designed to pre-

vent trial by ex parte accusations, Resp. Br. 42, and

that it reaches accusations made to private parties

engaged in investigations, id.at 29-30.

a. The Confrontation Clause was not designed to

prohibit ex parte accusations; it was designed to pro-

hibit ex parte examinations. Crawford, 541 U.S. at

50. Those examinations were conducted by govern-

ment officials interviewing witnesses when investi-

gating crime. This [i]nvolvement of government of-

ficers in the production of testimony with an eye to-

ward trial presents unique potential for prosecutorial

abuse. Crawford, 541 U.S. at 56 n.7. Ordinary

hearsay does not. Clark is thus wrong to accuse Ohio

of seeking to shield[] witnesses by procuring theirout-of-court assertions. Resp. Br. 24. A rule limited

to hearsay meant solely for private parties without


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police direction would not shield from confrontation

statements procured by the government. As Ohionoted, Petr. Br. 45-46, the Court can leave for anoth-

er day situations where a declarant uses private par-

ties as conduits for government actors or speaks

with private parties at the governments behest.

No better is Clarks reliance onthe reasonsfor the

confrontation rightallowing the jury to assess the

demeanor of witnesses and the defendant to cross-

examine them. Resp. Br. 23. If these benefits trig-

gered the right, the clause would cover all hearsay

because confrontation is missed anytime the prosecu-

tion admits an out-of-court statement. California v.

Green, 399 U.S. 149, 173 (1970) (Harlan, J., concur-

ring). Tellingly, moreover, the treatises that Clark

cites in support of these reasons show the confronta-

tion rights intended scope. They contrast testimonynot with garden-variety hearsay, but with ex parte

examinations. 3 William Blackstone, Commentaries

on the Laws of England 373 (1768); Matthew Hale,

The History and Analysis of the Common Law of

England257-58 (1713). They thus confirm that the

right exists to bar the use of ex parte examinations

and their equivalents.

Clark also invokes Raleighs trial. Resp. Br. 24,

43. [T]he abuses there, however, went far beyond a

conviction based on hearsay. Green, 399 U.S. at 178

n.11 (Harlan, J., concurring). They included a classic

civil-law examination of Lord Cobham. Williams,

132 S. Ct. at 2249 (Breyer, J., concurring). Even the

Cobham letter referenced by this Court was written

for officials in the midst of trial. 9 William S.Holdsworth, A History of English Law 228 (1926). If

anything, the only arguable analogy between this


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case and that one appears in the history reports, not

the U.S. Reports. In addition to Cobhams evidence,a man named Dyer testified that an out-of-court de-

clarant accused Raleigh of planning to kill the king.

1 James F. Stephen, History of the Criminal Law of

England 333 (1883). That the Court has never ex-

pressed any constitutional concern with this hearsay

shows that it falls outside the Confrontation Clause.

b. Clark mistakenly uses the Confrontation

Clauses purpose to conclude that it reaches state-

ments to listeners engaged in investigative func-

tions. Resp. Br. 29-30. His proposal misreads

Crawford and Davis. Those cases hold that the

clause regulates statements to police because their

interrogations bear a striking resemblance to exam-

inations by justices of the peace in England. Craw-

ford, 541 U.S. at 52. The involvement of govern-ment officers in the production of testimonial evi-

dence presents the same risk, whether the officers

are police or justices of the peace. Id. at 53. This

logicthat the government cannot evade the clause

by changing its employees job titlesdoes not ex-

tend to private conversations about past events.

Additionally, Clarks investigative-function pro-posal conflicts with the perspective that matters in

the end. Whether or not a questioner has a prosecu-

torial motive, the declarants purpose ultimately con-

trols whether the declarant is a witness. Bryant, 131

S. Ct. at 1160 n.11, 1162. Even when a questioner

cooperates with the government, a declarants

statements made unwittingly to [that] Government

informant do not become testimonial merely becauseof the listeners investigative functions. Davis, 547

U.S. at 825 (discussing Bourjaily v. United States,


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483 U.S. 171 (1987)). What sets yesterdays justices

of the peace and todays police apart from everyoneelse is that declarants speaking to them objectively

know their crime-fighting duties. The same cannot

be said when declarants speak to secret sleuths who

objectively have no criminal dutieswhether or not

theysubjectivelyact to obtain criminal evidence.

Finally, Clarks proposal is unworkable. A test

asking whether a questioner seeks to aid the official

search for truth creates uncertainty in every case.

Resp. Br. 30. Clark claims that [f]amily members

and friends almost never engage in conversations for

this purpose, id., but fails to explain why. In this

case, for example, L.P.s family might have had

Clarks investigative functions when speaking to

L.P. Tr. 431, 460. Under Clarks proposal, nobody

could predict the admissibility of any declarants an-swer to the question, what happened?


frontation Clauses history

Clarks accusation test conflicts with the tradi-

tional way courts regulated accusations to private

partiesthrough rules of evidence. One can cite

cases almost without limit admitting a victims af-ter-the-fact accusation to private parties. Solice v.

State, 193 P. 19, 22 (Ariz. 1920). Clark responds that

these cases involve the excited-utterance exception

rather than the child-abuse exception, a distinction

that allegedly matters for historical and reliability

reasons. Resp. Br. 43-46. Clark mistakenly details

the history and reliability of child hearsay. See Part

I.B. But, even assuming his account, these distinc-

tions are without a difference.


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History. While Clark claims the excited-utterance

rule is old, Resp. Br. 44, it is questionable whethertestimonial statements would ever have been admis-

sible on that ground in 1791, Crawford, 541 U.S. at

58 n.8. Rooted in the res gesta concept, the rule

expanded to statements made after the described

events. Travellers Ins. Co. ofChicago v. Mosley, 75

U.S. 397, 408 (1869); 6 John H. Wigmore, Evidence

1756, at 231 (J. Chadbourn rev. 1974). Clark cites

no case raising the slightest constitutional concernwith this expansion. That provides good evidence

that private-party hearsay falls within the Framers

design to afford the States flexibility in their devel-

opment of hearsay law. Crawford, 541 U.S. at 68.

Clark retorts that it is the rules excitement ele-

ment (not its private audience) that removes these

cases from the Confrontation Clause. Resp. Br. 44.He thus seeks to constitutionalize the excited-

utterance rule. Courts would always have to ask

whether a private-party accusation met both the

evolving excitement element of state law and the

rigid excitement element of the Confrontation

Clause. Hammon shows what is in store for the

States under his view. The state court admitted

statements to police under Indianas excited-utterance rule, but this Court found the statements

testimonial. Davis, 547 U.S. at 821, 830-31. While

the clauses concern with statements to government

investigatorsnecessitated this approach, Clark seeks

to expand it to cover the usual situation where a de-

clarant utters to neighbors, not investigators. This

view that all excited-utterance rulings raise a fact-

intensive constitutional question conflicts with Craw-

fords effort to delink the intricacies of hearsay law


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from a constitutional mandate. Bullcoming, 131

S. Ct. at 2727 (Kennedy, J., dissenting).Reliability. Clark argues that, unlike excited ut-

terances, child hearsay is unreliable. Resp. Br. 43-

44. This distinction is little more than an invitation

to return to [the Courts] overruled decision in Ohio

v. Roberts, 448 U.S. 56 (1980), which used reliability

as the touchstone for admissibility. Melendez-Diaz,

557 U.S. at 317-18. Indeed, the report in Melendez-

Diaz was likely more reliable than an excited utter-

ance. Cf. United States v. Boyce, 742 F.3d 792, 799-

800 (7th Cir. 2014) (Posner, J., concurring). Yet it

was still excluded. If alleged reliabilityis not enough

to veto the Confrontation Clause, then allegedunre-

liability should not be enough to triggerit.

Bryant, the case on which Clark relies, does not

help him. When making the primary purpose de-termination, the Court said, standard rules of

hearsay, designed to identify some statements as re-

liable, will be relevant. 131 S. Ct. at 1155. But it

left open the proper test for statements to private ac-

tors. Id. at 1155 n.3. Those statements are non-

testimonial without regard to reliability. Bullcom-

ing, 131 S. Ct. at 2720 n.1 (Sotomayor, J., concur-ring) (The rules of evidence, not the Confrontation

Clause, are designed primarily to police reliability.).

B. Clarks Child-Hearsay Analysis Flips His-

tory On Its Head And Advocates For A

Rule This Court Has Already Rejected

As Ohio noted, Petr. Br. 31-35, at a minimum, an

incompetent childs statements to private parties arenon-testimonial. Logically, the incompetency finding

suggests that the child is incapable of making tes-


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timonial statements. Historically, courts introduced

hearsay from incompetent children. In response,Clark invokes history and logic to argue for the oppo-

site rulethat a childs incompetency means courts

must exclude the childs hearsay. He is twice wrong.

History. Clark agrees that child hearsay was

commonly introduced, Resp. Br. 47, but explains

this fact on the ground that children were historical-

ly allowed to testify, id.at 1-3, 47-49. Not so. It was

at one time considered, that an infant, under the age

of nine years could not be permitted to testify. State

v. Whittier, 21 Me. 341, 347 (1842); Commonwealth v.

Hutchinson, 10 Mass. 225, 225 (1813); Rex v. Trav-

ers, 93 Eng. Rep. 793, 794 (1726). This was the

sharply criticized rule. Resp. Br. 51. Hale, for ex-

ample, advocated for a case-by-caseapproach tied to

each childs understanding. 1 Matthew Hale, TheHistory of the Pleas of the Crown634 (E. Rider et al.,

1800). His view prevailed in King v. Brasier, 168

Eng. Rep. 202 (1779). And this case-by-case rule (the

one Clark says deviated from history, Resp. Br. 51)

was the law most everywhere until recently. Wheeler

v. United States, 159 U.S. 523, 524-25 (1895); Van

Pelt v. Van Pelt, 1810 WL 773, at *1 (N.J. 1810).

Clark relies on Blackstone for his contrary argu-

ment. Resp. Br. 1. But Blackstone cites only Hales

private opinion that children should testify un-

sworn. W. Williamson, The Trials at Large of the

Felons, in the Castle of York 19 (York 1775). That

view was always disputed. Hales treatise was first

published in 1736. Thomas D. Lyon and Raymond

LaMagna, The History of Childrens Hearsay: FromOld Bailey to Post-Davis, 82 Ind. L.J. 1029, 1034

(2007). Before then, a court rejected a childs testi-


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13

mony without suggesting the child could speak un-

sworn. Travers, 93 Eng. Rep. at 794. And Halesopinion was expressly repudiated forty years later.

King v. Powell, 168 Eng. Rep. 157, 157-58 (1775).

It wassettled, however, that private parties could

testify about what children told them. Indeed, Hale

opined that children should testify unswornprecisely

becausecourts admitted their hearsay. 1 Hale,Pleas

at 634. The trial judge inPowell, for example, stated

that, [w]ith regard to the admitting the declaration

of the child to the mother, lord Hale speaks of that as

a clear and settled thing. Williamson, Trials at

Large, at 19. Thus, when judges found a child in-

competent, they were disposed to compensate by al-

lowing the mother, a surgeon, or others to testify

about the childs statements. John H. Langbein, The

Origins of Adversary Criminal Trial 239-40 (2003);Br. of Domestic Violence Legal Empowerment & Ap-

peals Project, at 21-30.

Clark saysBrasier changed things. Resp. Br. 48.

But Brasier held only that the infant would have

been competent, and therefore that the extrajudicial

evidence could not be used; it said nothing about in-

competent children. 3 John Henry Wigmore,A Trea-tise on the System of Evidence in Trials at Common

Law 1760, at 2271 (1904); Travers, 93 Eng. Rep. at

794 n.1; 1 Edward H. East, A Treatise of the Pleas of

the Crown444 (Philadelphia 1806). Ignoring all con-

trary authority, Clark cites Richard Burns 1783 edi-

tion of Blackstone articulating a broader view ofBra-

sier. Resp. Br. 48. But Burns source of information

for the case is unknown. Lyon, 82 Ind. L. J. at 1053.And Clark cites no authority suggesting that Burn

tied his idiosyncratic view to the confrontation right.


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14

Clarks more modern authorities (McCormick and

Wigmore) help Ohio. Resp. Br. 2, 48-49. The veryfootnote of McCormick that Clark cites for a rule ex-

cluding hearsay from incompetent parties adds:

However, in the past many jurisdictions have held

excited utterances admissible even when declarant

was a small child who would have been in competent

[sic] to testify at trial. 1 Kenneth S. Broun, McCor-

mick on Evidence 61 n.3 (6th ed. 2006). Likewise,

consistent with his view of Brasier, Wigmore recog-nized that [w]here the prosecutrix is a child too

young to be a witness, the statements should never-

theless be receivable. John Henry Wigmore, A Sup-

plement to A Treatise on the System of Evidence in

Trials at Common Law 1761, at 170 (1908).

Logic. Clark suggests that an incompetency find-

ing means the childs hearsay must be unreliable.Resp. Br. 6-7, 43-46. Yet at the height of the Roberts

regimewhen a statements admissibility turnedon

its reliabilitythe Court rebuffed this logic. In Ida-

ho v. Wright, 497 U.S. 805 (1990), it reject[ed] [the

defendants] contention that [a childs] out-of-court

statements . . . [were] per se unreliable, or at least

presumptively unreliable, on the ground that the tri-

al court found the [child] incompetent. Id. at 824.Wright did so partially because, while the finding

that a child could not communicate with the jury

might be relevant to whether the earlier hearsay

statement possessed particularized guarantees of

trustworthiness, a per serule of exclusion would not

only frustrate the truth-seeking purpose of the Con-

frontation Clause, but would also hinder States in

their own enlightened development in the law of ev-

idence. Id. at 825 (citation omitted). It would be


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15

ironic if the Court adopted a reliability rule under

Crawfordthat it rejected under Roberts.Wrighthad good reason to reject Clarks proposal.

Literature suggests that the competency inquiry at

trial is a poor proxy for assessing whether the childs

previous statements were reliable. SeeVictoria Tal-

war et al., Childrens Conceptual Knowledge of Lying

and Its Relation to Their Actual Behaviors: Implica-

tions for Court Competence Examinations, 26 Law &

Hum. Behav. 395, 396, 411-12 (2002); Thomas D.

Lyon & Karen J. Saywitz, Young Maltreated Chil-

drens Competence to Take the Oath, 3 Applied Dev.

Sci. 16, 16-17 (1999). Indeed, one of Clarks amici

rejects equating the two. Br. of Richard D. Friedman

& Stephen J. Ceci, at 15-19.

II.CLARK IMPROPERLY TREATS TEACHERS AS PO-

LICE MERELY BECAUSE OFAREPORTING DUTY

As Ohio showed (at 36-46), the teachers reporting

duty did not transform them into police agents or

trigger the primary-purpose test. The duty imposes

no requirement to investigate and does not make

mandatory reporters analogous to police. Further,

the duty would not transform private parties into

state actors for purposes of related constitutionalprovisions. Clarks contrary arguments lack merit.

First, Clark blurs the distinction between a re-

portingduty and an investigatingduty. He compares

Ohio law to the hospitals drug-testing policy for

pregnant women in Ferguson v. City of Charleston,

532 U.S. 67 (2001). Resp. Br. 35. Yet the hospital

undertook that testing for the specific purpose of in-criminating those patients, not for a medical pur-

pose. Ferguson, 532 U.S. at 85. Fergusonitself dis-


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16

tinguished the hospitals investigations from a duty

to provide the police with evidence of criminal con-duct that [reporters] inadvertently acquire in the

course of routine treatment. Id.at 84-85 & n.24.

Second, Clark notes that a reporters allegations

may be given to police. Resp. Br. 35-36. He fails to

explain why that matters. If it did, anyone who

called 911 would be considered the police with re-

spect to anything said to them before the call. In ad-

dition, Clark nowhere disputes that everyonehistori-

cally had a duty to report crimes, Petr. Br. 38, and

everyone now has a duty to report child abuse in

many States, Pet. 24. Clark would turn all of these

people into state agents. This case, moreover, is even

further removed from police because reporters need

only call social-service agencies, OToole v. Denihan,

889 N.E.2d 505, 513 (Ohio 2008), and the statute im-poses an investigating duty on those agencies, not on

police, Ohio Rev. Code 2151.421(F)(1). That social-

service entities investigate rebuts Clarks claim that

prosecution is the primary means of protecting

children. Resp. Br. 35. Such prosecution is merely

an adjunct to the civil scheme. Yates v. Mansfield

Bd. of Educ., 808 N.E.2d 861, 866 (Ohio 2004).

Third, Clark suggests that administrative guide-

lines tell teachers to investigate abuse. Resp. Br. 37.

Yet the guidelines instruct that [i]t is not your re-

sponsibility to determine if abuse or neglect is in fact

occurring or if any of the circumstances surrounding

suspected incidents of abuse or neglect actually hap-

pened. ODJFS, Child Abuse and Neglect: A Refer-

ence for Educators, at 9 (2013), available athttp://www.odjfs.state.oh.us/forms/file.asp?id=398&t

ype=application/pdf. They instruct that, since it is


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17

the responsibility of the [social-service agency] to in-

vestigate alleged child abuse and neglect, school per-sonnel shall not pressure the child to divulge infor-

mation regarding specific circumstances or the iden-

tity of the alleged perpetrator. Id.at 32. And they

instruct that handbooks should be clear that your

school does not investigate abuse and neglect, but

the law enforcement and [social-service agency] do

these investigations and your personnel cooperate

whenever necessary. Id.at 46. Clark cites no evi-dence that the teachers here reviewed the guidelines,

let alone shared his misunderstanding of them.

Fourth, Clark argues that Ohio Rev. Code

2151.421(H) guaranteed that any accusatory

statements the teachers elicited would be admissible

in any [criminal] prosecution. Resp. Br. 20; id. at

10-11, 35. But subsection (H) is an irrelevant confi-dentialityprovision (as illustrated by this briefs ap-

pendix). It says a report made under this section is

confidential. Ohio Rev. Code 2151.421(H)(1). It

then lists exceptions to this confidentiality rule, in-

cluding criminal prosecutions. Id. Yet a report is

admissible in those prosecutions only in accord-

ance with the Rules of Evidence. Id. Clarks reli-

ance on 2151.421(H) is thus analogous to arguingthat all statements to private parties are really

statements to police because, like child-abuse re-

ports, allare also admissible in accordance with the

rules of evidence. But a business record does not

become a police report simply because it is admissi-

ble in accordance with Ohio Rule Evid. 803(6). The

same is true of the reports at issue here.

Fifth, Clark fails to distinguish the related consti-

tutional provisions that Ohio cited. He says the oth-


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18

er provisions are irrelevant because they regulate

police conduct, whereas the Confrontation Clausein no way governs police conduct. Resp. Br. 31

(quotingDavis, 547 U.S. at 832 n.6). YetDavismade

this statement not for Clarks proposition (that

statements to police are the same as statements to

private actors), but for a far different one (that the

clause does not prohibit police from procuring testi-

mony). Crawford notes the obvious difference be-

tween statements to government actors and state-ments to private parties, 541 U.S. at 51, and the

rules for distinguishing the two elsewhere are just as

informative here.

III.CLARK HAS NOT SHOWN THAT L.P.S STATE-

MENTSWERE TESTIMONIAL UNDER THE PRIMA-

RY-PURPOSE TEST

As Ohio showed (at 46-54), L.P.s statements tohis teachers were non-testimonial under the prima-

ry-purpose test. The teachers spoke with L.P. to pro-

tect him; L.P., given his young age, likely had no

purpose at all when responding to his teachers; and

the questioning was informal. Clarks contrary ar-

guments are mistaken.

Teachers Perspective. To claim that the teachersspoke with L.P. for prosecutorial purposes, Clark re-

lies on their reporting duty. Resp. Br. 34-38. Even if

the Court agrees that the primary-purpose test ap-

plies, the reasons discussed above, see Part II, show

that this duty does not establish that the teachers

spoke with L.P. for evidentiary reasons.

Clark also notes that L.P. did not simply have abump on his nose and had seemingly been struck

repeatedly by whips of some sort. Resp. Br. 34


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19

(quoting JA27). These egregious injuries, Clark says,

prove the teachers prosecutorial purpose becausethey immediately suspected child abuse. Id. at 34

(quoting Pet. App. 16a). Quite the opposite is true.

For starters, when asking questions like Whoa,

what happened, the teachers were kind of like in

shock. JA27. Most human beings, on encountering

a severely injured three-year-old, would spontaneous-

ly ask the same questions without attempting to

creat[e] an out-of-court substitute for trial testimo-ny. Bryant, 131 S. Ct. at 1155.

In addition, the dramatic and serious nature of

L.P.s injuries, Resp. Br. 38, had the effect of focus-

ing [the teachers] attention on responding to the

emergency, Bryant, 131 S. Ct. at 1157. When con-

fronted with an injured child, teachers need to know

whom they are dealing with in order to assess the . . .possible danger to the child. Hiibel v. Sixth Judicial

Dist. Court of Nev., Humboldt Cnty., 542 U.S. 177,

186 (2004); Davis, 547 U.S. at 827. After all, L.P.

himself was not old enough to dial 911 or to find his

way to the local police station. Resp. Br. 40.

L.P.s Perspective. Clark argues that [w]hile

young children lack a sophisticated understanding ofour criminal justice system, they perceive certain au-

thority figures much the same way adults perceive

the policeas official actors who have the power to

punish wrongdoers. Resp. Br. 32; id. at 40. But

Clark cites nothing for this bald conclusion. Here, no

evidence suggests L.P. viewed his daycare teachers

as people who would punish his abuser. More gen-

erally, studies suggest that, while children may viewpolice as those who punish wrongdoers, they do not


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20

view others in that light. Br. of Am. Profl Socy on

the Abuse of Children, at 7-9 & nn.6-10.Clark also claims that L.P. would have recognized

the gravity of the situation because the teachers

questioned him like police would. Resp. Br. 39-40.

But their conversation was brief, and the lead teach-

er did not want to embarrass L.P. or alarm the chil-

dren in the classroom. JA58. Further, when L.P.

implicated Dee, she did not repeat L.Ps words to

reinforce the gravity of the accusation. Resp. Br.

40. She did so because she didnt know what that

meant, JA59, and just wanted to understand [L.P.]

clearly, JA60. If anything, L.P.given his youth

and bewildered state, JA59had no purpose at all

in answering questions posed; the answers [were]

simply reflexive. Bryant, 131 S. Ct. at 1161.

Circumstances of Questioning. Clark claims thatthe same earmarks of formality are present here as

were present in Hammon. Resp. Br. 41. That is a

stretch. In Hammon, [i]t import[ed] sufficient for-

mality . . . that lies to [police] officers are criminal

offenses. Davis, 547 U.S. at 830 n.5. Here, no crim-

inal law punished L.P. for lying to teachers. In

Hammon, the victims interrogation was conductedin a separate room. Id.at 830. Here, L.P. was in

the classroom, and it was only later that a teacher

took him to a separate room. JA45, 58. In Hammon,

after [the victim] answered the officers questions,

he had her execute an affidavit. Davis, 547 U.S. at

832. The teachers did not later draft an affidavit for

L.P. to execute.


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21

IV.THE PROPER BALANCE IN CHILD-ABUSE CASES

SHOULD BE STRUCK THROUGH DEMOCRATICMEANS,NOT THROUGHANATEXTUAL,AHISTOR-

ICAL READING OF THE CONFRONTATION CLAUSE

For centuries, child-abuse cases have presented

difficult dilemmas. In Cases of foul Facts done in

Secret, where the Child is the Party injured, the re-

pelling their Evidence entirely is, in some Measure,

denying them the Protection of the Law. Francis

Buller,An Introduction to the Law Relative to Trials

at Nisi Prius 293 (4th ed. London 1785). [B]ut it

must be remembered that child abuse is an accusa-

tion . . . harder to be defended by the party accused,

[though] never so innocent. 1 Hale, Pleas at 634.

As the dueling amicus briefs show, the debate over

the proper procedure for resolving these tragic cases

is alive and well today.Clark, for his part, claims to have discovered the

solution to this centuries-old problem, and criticizes

Ohio for not having adopted it. Resp. Br. 1-7, 49-59.

Ohio (like many States) follows the case-by-case ap-

proach to determining a childs competency, State v.

Maxwell, 9 N.E.3d 930, 957-58 (Ohio 2014), but al-

lows courts to introduce child hearsay if it has par-ticularized guarantees of trustworthiness, Ohio R.

Evid. 807(A)(1). Far better, Clark argues, for Ohio to

eliminate competency requirements, Resp. Br. 3-5 &

n.1, and protect children with techniques like exami-

nations by therapists, id. at 4, 53-55. This pro-

posalone with little relevance to the Confrontation

Clauseis ironic.

For one, it is the defendant who typically chal-

lenges a childs competency. See, e.g., Maxwell, 9

N.E.3d at 957; State v. Frazier, 574 N.E.2d 483, 486-


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22

87 (Ohio 1991). Statistics suggest that prosecutors

rarely bring cases without the victims testimony.Br. of Am. Profl Socy on the Abuse of Children, at

24. Here, prosecutors sought to prove L.P.s compe-

tency. JA5-12. When they failed, Clark immediately

moved to exclude L.P.s remaining evidence. JA13.

For another, to justify his expansion of the con-

frontation right, Clark suggests the right could per-

mit unique forms of child testimony. Resp. Br. 53-55.

Yet, in other cases where States have opted for such

approaches, defendants have been less forgiving than

Clark about their validity. Compare Maryland v.

Craig, 497 U.S. 836 (1990), with Coy v. Iowa, 487

U.S. 1012 (1988). Clark offers no basis to think that

defendants would stop challenging these methods.

For a third, even in jurisdictions with more re-

laxed competency rules, Resp. Br. 3-5 & n.1, courtsstill exclude witnesses for lack of competency (for ex-

ample, under the requirement that a witness have

oath-taking capacity). SeeFed. R. Evid. 603; Daniel

J. Capra, Case Law Divergence From the Federal

Rules of Evidence, 197 F.R.D. 531, 536 (2000); Thom-

as D. Lyon, Child Witnesses and the Oath: Empirical

Evidence, 73 S. Cal. L. Rev. 1017, 1021-24 (2000).The relaxed rules also provide no solution when the

problem is the childs refusal to testify, White, 502

U.S. at 350, or the childs death, United States v.

DeLeon, 678 F.3d 317, 327 (4th Cir. 2012), revd on

other grounds by133 S. Ct. 2850 (2013).

In short, Clarks proposal is not the panacea he

claims. Worse still, by enshrining it in the Constitu-

tion, Clark foreclose[s] [the States] from contrib-

uting to the formulation and enactment of rules that

make trials fairer and more reliable. Bullcoming,


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23

131 S. Ct. at 2727 (Kennedy, J., dissenting). It

speaks volumes on the need for such democratic evo-lution that many amicus briefs are filled with psy-

chological literature debating when childrens state-

ments are reliable. CompareBr. of Am. Profl Socy

on the Abuse of Children, at 23-29, withBr. of Fami-

ly Defense Ctr. et al., at 14-23. If ever there were an

area where the Court should afford the States flexi-

bility in their development of hearsay law, Craw-

ford, 541 U.S. at 68, this would be it.

One last word on Ohios approach. The same

brief that ridicules Ohio R. Evid. 807s reliability re-

quirement as an empty promise, Resp. Br. 46, criti-

cizes Ohio for seeking an advisory opinion on the

constitutional question because the intermediate

court said that L.P.s statements to his family should

have been excluded under the rule, id.at 17. Clarksown brief suggests the rule is far from empty. To

be sure, Ohio believes that L.P.s statements to his

teachers fall within Ohio R. Evid. 807. Unlike the

suggestive questioning in Wright, 497 U.S. at 826,

the teachers did not know Clark or even what [L.P.]

meant when he implicated Dee, JA59. And Clark

was the only suspect L.P. implicated to sixdifferent

people. JA46, 59, 128, 146, Tr. 431, 460. Yet this re-liability question is not for this Courtunder the Con-

frontation Clause. It is for the state courts under

Ohio R. Evid. 807.


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24

CONCLUSION

The Ohio Supreme Courts judgment should bereversed, and the case should be remanded for pro-

ceedings consistent with this Courts decision.

Respectfully submitted,

MICHAEL DEWINEAttorney General of Ohio

ERIC E. MURPHY

State Solicitor

SAMUEL PETERSON

Deputy Solicitor

30 East Broad Street

17th Floor

Columbus, Ohio 43215614-466-8980

TIMOTHY J. MCGINTYCuyahoga County Prosecutor

KATHERINE E. MULLIN*

Assistant Prosecuting Attorney

*Counsel of Record

The Justice Center

1200 Ontario Street

Cleveland, Ohio 44113

216-443-7800kemullin@prosecutor.

cuyahogacounty.us

Counsel for Petitioner State of Ohio

FEBRUARY 2015


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APPENDIX


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Ohio Revised Code 2151.421(H).

(H)

(1) Except as provided in divisions (H)(4) and (N)

of this section, a report made under this section is

confidential. The information provided in a report

made pursuant to this section and the name of the

person who made the report shall not be released for

use, and shall not be used, as evidence in any civil

action or proceeding brought against the person who

made the report. Nothing in this division shall pre-clude the use of reports of other incidents of known

or suspected abuse or neglect in a civil action or pro-

ceeding brought pursuant to division (M) of this sec-

tion against a person who is alleged to have violated

division (A)(1) of this section, provided that any in-

formation in a report that would identify the child

who is the subject of the report or the maker of the

report, if the maker of the report is not the defendantor an agent or employee of the defendant, has been

redacted. In a criminal proceeding, the report is ad-

missible in evidence in accordance with the Rules of

Evidence and is subject to discovery in accordance

with the Rules of Criminal Procedure.

(2) No person shall permit or encourage the unau-

thorized dissemination of the contents of any report

made under this section.

(3) A person who knowingly makes or causes an-

other person to make a false report under division

(B) of this section that alleges that any person has

committed an act or omission that resulted in a child

being an abused child or a neglected child is guilty of

a violation of section 2921.14 of the Revised Code.

(4) If a report is made pursuant to division (A) or(B) of this section and the child who is the subject of

the report dies for any reason at any time after the


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2a

report is made, but before the child attains eighteen

years of age, the public children services agency ormunicipal or county peace officer to which the report

was made or referred, on the request of the child fa-

tality review board, shall submit a summary sheet of

information providing a summary of the report to the

review board of the county in which the deceased

child resided at the time of death. On the request of

the review board, the agency or peace officer may, at

its discretion, make the report available to the re-view board. If the county served by the public chil-

dren services agency is also served by a childrens

advocacy center and the report of alleged sexual

abuse of a child or another type of abuse of a child is

specified in the memorandum of understanding that

creates the center as being within the centers juris-

diction, the agency or center shall perform the duties

and functions specified in this division in accordance

with the interagency agreement entered into under

section 2151.428 of the Revised Code relative to that

advocacy center.

(5) A public children services agency shall advise

a person alleged to have inflicted abuse or neglect on

a child who is the subject of a report made pursuant

to this section, including a report alleging sexualabuse of a child or another type of abuse of a child

referred to a childrens advocacy center pursuant to

an interagency agreement entered into under section

2151.428 of the Revised Code, in writing of the dispo-

sition of the investigation. The agency shall not pro-

vide to the person any information that identifies the

person who made the report, statements of witness-

es, or police or other investigative reports.

Ohio Supreme Court Brief on Teachers as Child Abuse Reporters

Documents

Transcript of Ohio Supreme Court Brief on Teachers as Child Abuse Reporters